Gomez v. Moore et al

Filing
95

ORDER; Defendant's Motion 63 for Summary Judgment is GRANTED on Counts One and Four, the discriminatory discharge claim in Count Two, and the retaliatory failure to rehire claims in Counts Three and Five; and it is DENIED on the retaliatory discharge claims in Counts Two, Three and Five. Signed by Judge Janet Bond Arterton on 3/27/2014. (Morril, Gregory)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
RICK GOMEZ,
Plaintiff,
v.
METROPOLITAN DISTRICT,
Defendant.
Civil No. 3:11cv1934 (JBA)
March 27, 2014
ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Rick Gomez, is an African-American male and former employee of
Defendant the Metropolitan District (the “District”). His Third Amended Complaint
[Doc. # 60] alleges that he was terminated and subsequently not hired for a different
position at the District due to discrimination on the basis of race and as a result of
retaliation for complaints that he filed opposing discrimination. Plaintiff asserts claims
for (1) Discrimination in violation of Title VII, 42 U.S.C. § 2000e, et seq. (Count One), 42
U.S.C. § 1981 (Count Two), and the Connection Fair Employment Practices Act
(“CFEPA”), Conn. Gen. Stat. §§ 46a-51(10) & 46a-60 (Count Four); and (2) Retaliation in
violation of § 1983 (Count Two), Title VII (Count Three), and the CFEPA (Count Five).
Defendant now moves [Doc. # 63] for summary judgment on all counts. For the
reasons that follow, Defendant’s motion is granted in part and denied in part.
I.
Facts
A.
Plaintiff’s Employment
The District is a non-profit, quasi-municipal corporation created by the
Connecticut legislature in 1929, which provides water and wastewater treatment services
and products to eight member towns and other residential and commercial customers.
(Zaik Aff., Ex. F to Def.’s Loc. R. 56(a)1 Stmt. [Doc. # 65] ¶¶ 5–6.) Plaintiff, Rick Gomez
was employed by the District from October 2001 through October 7, 2011. For the first
five years of his employment, Gomez held the position of Affirmative Action Officer,
although at some point his title was changed to Diversity Officer. (Gomez Dep. Tr., Ex. 1
to Pl.’s Loc. R. 56(a)2 Stmt. [Doc. # 81] at 33–34.) As the Affirmative Action/Diversity
Officer, Gomez reported directly to the District’s CEO, Charles Sheehan, and was
responsible for reviewing all hires and promotions for racial neutrality and for
conducting investigations of employee complaints. (Id. at 33.)
At some point in 2006, Gomez had a conflict with management over the District’s
affirmative action plan, and thereafter he felt that management intentionally isolated him
and excluded him from hiring and promotional decisions. (Gomez Aff., Ex. 6 to Pl.’s
56(a)2 Stmt. ¶ 3.)
In November 2006, Gomez was involuntarily transferred to the
Program Management Unit (“PMU”) as the Diversity Officer and reported to personnel
within Human Resources rather than the District’s CEO. (Gomez Dep. Tr. at 34–36.)
Gomez’s direct supervisor was Michael Jefferson, Diversity Manager for PMU, Jefferson
reported to George Scurlock, Director of Diversity, who in turn reported to Erin Ryan,
who was an Assistant District Counsel (and also served as interim Director of Human
Resources). (Zaik Dep. Tr., Ex. 7 to Pl.’s 56(a)2 Stmt. at 15–17.)
Gomez protested this transfer and expressed his view that he was being set up for
failure. (Gomez Aff. ¶ 5.) In his new position, Gomez was no longer responsible for
investigating internal complaints and his main responsibility became monitoring the
District’s outside contractors by conducting field site visits to observe and gather
information about the percentage of minority workers in their workforce. (Gomez Dep.
2
Tr. at 36–37.)
Gomez also worked to develop new compliance tracking processes,
procedures, and programs, and worked on the District’s summer student youth outreach
program and community outreach regarding the District’s water valve program. (Gomez
Aff. ¶¶ 6–7.)
During the final two years of his employment, Gomez increasingly felt targeted
and subjected to harassment and disparate treatment by District management on account
of his race. (Gomez Aff. ¶ 9.) In January 2010, Gomez was suspended for two days after
an altercation with a coworker in the Information Technology Department, Mark
Bednarz. Bednarz had been instructed to retrieve Gomez’s work-issued laptop computer
so that it could be replaced with a desktop. Shortly after Gomez was informed of the
change, Bednarz appeared at his desk and demanded the computer without giving Gomez
the opportunity to remove some personal materials first. When Gomez declined to
immediately hand over the laptop, Bednarz “grabbed” Gomez and “wrestled” the laptop
out of his hands. (Gomez Dep. Tr. at 57–58.) Because Gomez believed that he had been
the “victim of an assault,” he went to the hospital emergency room and was treated with
an ice pack, bandage, and a sling for strain. (Id. at 83.) Gomez and Bednarz both filed
internal complaints regarding the incident, and the District conducted an investigation.
(Id. at 77.) Gomez was told that his actions were in violation of “basic professional
behavior” and issued a two-day suspension, while Bednarz—who Gomez believed was the
aggressor—received a one-day suspension. (Id. at 91, 93–94.)
In June 2010, Gomez filed a complaint with the Connecticut Commission on
Human Rights and Opportunities (“CHRO”), alleging race-based disparate treatment
largely based on the laptop incident. (See CHRO Complaint, Ex. 2 to Pl.’s 56(a)2 Stmt.)
3
Gomez filed amended complaints with the CHRO, in December 2010 and March 2011,
alleging that despite his role as Diversity Officer he was being excluded from hiring
decisions, and was denied a promotion to Director of Diversity, on account of his race.
(See Dec. 22, 2010 & Mar. 22, 2011 CHRO Am. Compls., Exs. 3–4 to Pl.’s 56(a)2 Stmt.)
Gomez also filed an internal complaint with the District in March 2011, alleging that he
was subject to ongoing and increasingly hostile and retaliatory treatment from his direct
supervisor, Jefferson. (Gomez Dep. Tr. at 192–194.)
The CHRO scheduled a mediation and fact-finding conference for July 28, 2011.
Gomez brought several witnesses with him to the CHRO proceeding, including his coworkers Lebert Thomas and Deborah Smith, to testify in support of his complaint.
(Gomez Dep. Tr. at 109–110, 25–26, 128–129; see also Zaik Dep. Tr. at 75–76; Smith Aff.,
Ex. 10 to Pl.’s 56(a)2 Stmt. ¶ 8; Thomas Aff., Ex. 46 to Pl.’s 56(a)2 Stmt. ¶ 10.) Mediation
was not successful and the parties did not proceed with the fact-finding conference.
Robert Zaik, Manager of Labor Relations, attended the proceeding on behalf of the
District, and Gomez believes Zaik was aware that Thomas and Smith had come to the
CHRO proceeding to testify in his support. (Gomez Dep. Tr. 128–29; Zaik Dep. Tr. at
75–76.)
On September 15, 2011, Gomez requested a release of jurisdiction from the
CHRO so that he could pursue his claims in court. (Gomez Aff. ¶ 23.) Within the next
three weeks, Gomez’s job responsibilities were first curtailed and he was then notified of
his termination. In approximately the last week of September, the District’s legal counsel,
Bart Halloran, decided to reassign Gomez’s responsibility for conducting site visits to
collect data on the District’s contractors to an outside consultant, Lilian Ruiz, who is a
4
white or Hispanic female. (Gomez Dep. Tr. at 194–95; Gomez Aff. ¶ 10.) Gomez was not
directly informed of this decision and first learned of it when other inspectors at the sites
reported that Ruiz and one of the District’s attorneys, Carl Nasto, had already conducted
inspections and said that Ruiz would be taking Gomez’s duties. (Gomez Dep. Tr. at 194.)
Scurlock, the Director of Diversity, initially told Gomez that he did not know anything
about this change, but a few days later, he called Gomez and reported that Halloran had
decided to make the change, and Gomez would now be able to focus more on doing “real
Diversity work.” (Gomez Aff. ¶ 11.)
Defendant contends that in 2010 through 2011, a number of community groups
started to distrust the District’s contractor diversity statistics, which were collected by
Gomez. There were regular demonstrations by these groups in protest outside of the
District’s headquarters. (Zaik Aff. ¶ 15.) Personnel within the District were concerned
that Gomez recorded contractor diversity data without personally verifying the
information by conducting field visits (Zaik Aff. ¶ 16), and that the District would
potentially lose government financing because no site visits had been conducted over the
winter of 2010/2011 (Ryan Dep. Tr., Ex. 8 to Pl.’s 56(a)2 Stmt. at 48).
In order to combat this perception, the District hired Ruiz to provide an
independent audit of Gomez’s work, and eventually she assumed his responsibilities.1
(Zaik Aff. ¶¶ 17–18.) Gomez acknowledged that there were concerns raised by District
commissioners regarding the reliability of the District’s contractor diversity data, but
1
Plaintiff disputes that Ruiz conducted an audit of his work, because the District
did not produce any documents in discovery indicating that Ruiz had done so. (Gomez
Aff. ¶¶ 13–15.)
5
contended that hiring an outside consultant would not redress such concerns because
they stemmed from the “compliance tracking mechanism” rather than the manual task of
collecting data. (Gomez Dep. Tr. at 195.)
B.
Plaintiff’s Termination
On October 7, 2011, approximately one week after having his job responsibilities
curtailed, Gomez was notified that his job had been eliminated and his employment with
the District was being terminated because the Connecticut Resource Recovery Authority
(“CRRA”) had decided to not review a twenty-six year contract under which it paid the
District $2.1 million annually for management and labor costs for the Mid-Connecticut
Project, a waste-to-energy project that provided electricity to the CRRA’s member towns.
(Zaik Aff. ¶¶ 7–8.)
Over three meetings in September and October 2011, a group of management and
Human Resources personnel sought to determine how the District would cope with the
loss of the $2.1 million. (Zaik Dep. Tr. at 101.) The District concluded that it would need
to conduct a reduction in force (“RIF”) in order to meet this shortfall, and the first
positions selected for elimination were those that were directly responsible for working
on the eliminated project. (Zaik Aff. ¶¶ 24–26; Zaik Dep. Tr. at 106–07.) Only three
employees—Louise Guarnaccia, Lisa Remsen and Abdul Rabah—fell into this category
and their termination did not come close to compensating for the $2.1 million shortfall.
(Zaik Dep. Tr. at 60, 106–108; Jellison Dep. Tr., Ex. 12 to Pl.’s 56(a)2 Stmt. at 72.) The
District thus had to identify additional positions for elimination.
The group next sought to identify positions that provided administrative support
for the project, such as those in Human Resources or technology (Zaik Dep. Tr. at 107–
6
10; Jellison Dep. Tr. at 70), and then additional positions throughout the District that
could be eliminated without impacting its core mission to provide sewer and waters
services. (Zaik Dep. Tr. at 107–110; Jellison Dep. Tr. at 70, 65.)
Zaik, the Manager of Labor Relations; Scott Jellison, the Deputy CEO; and Ryan,
acting as interim Director of Human Resources, identified positions within their
respective departments that could be potentially eliminated. John Zinzarella, Deputy
CEO and CFO, provided projected cost savings from these eliminations, and Halloran,
the District Counsel, and Christopher Stone, Assistant District Counsel, also participated
to provide legal advice. (Jellison Dep. Tr. at 62, 69, 92; Ryan Dep. Tr. at 35, 60; Zaik Dep.
Tr. at 105–06, 111–14, 145–46.)
Jellison, Zaik, and Ryan contended that they only identified positions to eliminate
and there was no discussion about the individuals holding such positions, although
Jellison and Ryan acknowledged that they were aware that Gomez held the position of
PMU Diversity Officer, which they considered eliminating.2 (Jellison Dep. Tr. at 69, 79;
Zaik Dep. Tr. at 115; Ryan Dep. Tr. at 63–4.)
2
On the day before oral argument on this motion, Plaintiff supplemented the
record [Doc. # 93] with an email, dated July 20, 2011, from Sheehan to Zinzarella—both
using their personal rather than business email accounts—in which Sheehan sent a list of
24 names. The subject line read “As Discussed” and after the list of names, Sheehan
wrote “Need Unit of Assignment, Salary, Years of Service and Union, if applicable (most
if not all are E & E).” At oral argument, Plaintiff contended that 18 of these employees
were non-unionized and 14 of them—including Gomez, whose is identified as “R.
Gomes” were ultimately terminated. Plaintiff maintains that this email supports his
theory of pre-selection and shows that the process for selecting positions for elimination
started far earlier than Defendant has previously acknowledged.
7
In Ryan’s notes from the meetings, she wrote the names of a number of the
individuals who were to be eliminated, although she testified at her deposition that she
did not believe that actual names were used during the meetings. (See Erin Ryan Mtg.
Notes, Ex. 14 to Pl.’s 56(a)2 Stmt.; Ryan Dep. Tr. at 127.) For discussion during the
meetings, Zaik prepared a number of draft lists of positions to be eliminated and the
resulting potential cost savings. On an undated draft of one such list in which Gomez was
identified by name and position for elimination, Ryan added a handwritten notation
below the chart in which she wrote Gomez’s name and that of another employee, Donna
Szestakow—who had also previously filed a complaint regarding discrimination—and
connected the two with a bracket. (Ryan Undated Notes, Ex. 15 to Pl.’s 56(a)2 Stmt.) At
her deposition, Ryan refused to answer questions regarding this notation on the basis of
attorney-client privilege, but claimed that she did not recall Gomez and Szestakow being
discussed during the meeting. (Ryan Dep. Tr. at 155–58.)
Although Zaik testified that no positions within Gomez’s Diversity Department
were identified for elimination at either of the first two meetings (Zaik Dep. Tr. at 113),
Ryan’s wrote “Diversity-1” in her notes from the first meeting, indicating that one of the
five positions in the department would be eliminated. (Ryan Sept. 14, 2011 Notes, Ex. 14
to Pl.’s 56(a)2 Stmt. at 2.) Ryan ultimately selected Gomez, Sharon Dixon, and Douglas
Kerr for elimination, and explained that each of them was selected because the District
“needed to recoup $2.1 million through x number of positions” and “the duties he was
fulfilling could be fulfilled by others at The District.” (Ryan Dep. Tr. 39, 42–44.) Ryan
formed this belief as to Gomez, because his responsibility for site visits had already been
8
transferred to an outside consultant, and she was not aware of his other responsibilities.
(Id. at 44.)
Ultimately, the group recommended a total of twenty positions for elimination.
(Schedule of Positions Eliminated, Ex. H to Def.’s 56(a)1.) On October 7, 2011, Gomez
and the other affected employees were informed of their termination. (Jellison Dep. Tr.
at 57–8.) On October 18, 2011, Gomez filed a second CHRO complaint, alleging that his
termination was based on discriminatory animus and retaliation for his previous
complaints. (Gomez Dep. Tr. at 104–105; Ryan Dep. Tr. at 35; Oct. 18, 2011 CHRO
Compl., Ex. 5 to Pl.’s 56(a)2 Stmt.)
C.
Other Employees Affected by Defendant’s Layoffs
In support of his claims for discriminatory and retaliatory discharge, Plaintiff has
presented evidence regarding the other employees who were selected for layoffs. Three of
the twenty employees were unionized, and the cost of their salary was directly associated
with the CRRA funding, another three were unionized employees not directly associated
with the CRRA funding, and the remaining fourteen—including Gomez—were nonunionized salaried employees referred to as “exempt and excluded.” (See Schedule of
Positions Eliminated.)
Of these fourteen non-unionized employees terminated, four or approximately
29% were African-Americans: Plaintiff, Dixon, Smith, and Kerr. (Zaik Dep. Tr. at 62–
64.) All but Smith were selected for elimination by Ryan, because she contended that
their responsibilities could be fulfilled by other employees. (Ryan Dep. Tr. at 37–39, 41–
44, 52.) African-Americans comprised approximately 16.5% of the District’s overall
workforce of non-unionized employees. (Zaik Dep. Tr. at 85, P Ex. 20.)
9
Of the fourteen non-unionized employees, five or 36% had previously filed a
discrimination complaint internally or with an outside agency. (Zaik Dep. Tr. at 96–97;
List of Exempt and Excluded Nonunion Employees, Ex. 20 to Pl.’s 56(a)2 Stmt.) As of
January 1, 2011, a total of six employees or just fewer than 6% of the District’s workforce
had previously complained of employment discrimination: Gomez, Szestakow, Smith,
Dixon, Kathleen Drake, and Lebert Thomas. (List of Exempt and Excluded Nonunion
Employees; Zaik Dep. Tr. at 85, 92–87.) Thomas was terminated in August 2011, and the
other five were laid off in October 2011. (List of Exempt and Excluded Nonunion
Employees; List of Eliminated Positions; Zaik Dep. Tr. 96–98.)
Szestakow, a Management Analyst employed by Defendant from November 1992
through October 2011, had filed a complaint with the CHRO in 2008 alleging disability
discrimination and then filed that claim in federal court in 2010. This claim was pending
at the time of her termination, and Zaik and Ryan—as well as Jellison, who selected her
for termination—acknowledge that they were aware of Szestakow’s complaints at the time
of her termination. (Zaik Dep. Tr. at 46–48, 96, 114; Jellison Dep. Tr. at 46–48; Ryan
Dep. Tr. at 35, 56, 82.)
Smith, an administrative assistant employed from March 1990 to October 2011,
had filed a CHRO complaint in 2009, alleging racial discrimination regarding her salary.
(Zaik Dep. Tr. at 83–84, Smith Aff. ¶ 13.) Smith also attended Gomez’s July 2011 CHRO
proceeding and was going to testify before it was canceled. (Smith Aff. ¶ 8, Gomez Dep.
Tr. at 128–29; Zaik Dep. Tr. at 76, 83.) On August 11, 2011 Smith sent a letter to the
District’s board, copying Ryan, in which she voiced concerns regarding the District’s
failure to adhere to its own affirmative action plan and a hiring practice whereby
10
employees were appointed to positions in an interim capacity and later hired
permanently for the position. (Smith Aff. ¶¶ 9–11 & Ex. 1 to Smith Aff.) Zaik, Ryan, and
Sheehan were aware of these activities at the time of her termination in October 2011.
(Zaik Dep. Tr. at 83–84, 96; Smith Aff. ¶¶ 9–13.)
Dixon, a Community Affairs Assistant employed from July 1987 until October
2011, had filed a CHRO and internal complaint in 2006, alleging racial discrimination on
the basis of the District’s failure to hire her for a position for which she had applied.
(Zaik Dep. Tr. at 37–41.) Ryan, who selected her for termination, as well as Zaik, were
aware of this complaint at the time she was selected for termination. (Zaik Dep. Tr. at 37,
96, 114; Ryan Dep. Tr. at 41, 43.)
Drake, a Staff Services Administrator employed from July 2008 until October
2011, filed an internal complaint in the fall of 2010 alleging that she had been subjected to
a hostile work environment based on her gender. (Zaik Dep. Tr. at 44–45.) Both Zaik
and Jellison (who selected her for termination) were aware of this complaint. (Zaik Dep.
Tr. at 46, 97–97, 114; Jellison Dep. Tr. at 67, 74–78.)
D.
Failure to Rehire Claim
Approximately one week before Gomez was terminated, he had applied for the
position of Special Services Administrator. Although the position was filled on an
interim basis by Julie McLaughlin, a white female who had never filed a discrimination
complaint against the District, it was still considered vacant while the District used an
“open competitive process” to fill it with an internal candidate. (Jellison Aff., Ex. G to
Def.’s 56(a)1 ¶ 5; Ryan Dep. Tr. at 94.) Two employees included in the RIF applied to the
position before their termination, Gomez and Szestakow.
11
After discussion between personnel in Human Resources, the District Counsel,
and the District’s CEO, Gomez and Szestakow were allowed to interview for the position
even though they were no longer employed by the District.3 (Ryan Dep. Tr. at 80–81, 83–
85.) (Jellison Aff. ¶ 5.) Mannila was assigned to handle recruitment for the position and
conducted a pre-screening interview with each of the applicants, including Gomez on
October 27, 2011 because Gomez’s termination occurred before the listing’s closing date.
(Oct. 19 Email Mannila to Ryan, Ex. 33 to Pl.’s 56(a)2 Stmt.; Mannila Depo. Tr., Ex. 44 to
Pl.’s 56(a)2 Stmt. at 6–7, 24, 35–37, 39–40, 66–67.)
In an email to Ryan, Mannila ranked the top nine candidates for the position with
McLaughlin ranked first followed by Gomez. Mannila described McLaughlin, Gomez,
and another candidate as “very strong candidates” with “very good to excellent
experience.” (Oct. 28, 2011 email Mannila to Ryan, Ex. 36 to Pl.’s 56(a)2 Stmt. at 1–2.)
Ryan asked for additional information on how Mannila ranked the candidates and noted
that they “needed to have lots of documentation as to why certain candidates are
3
Szestakow did not actually interview for the position. Defendant contends that
she withdrew her application due to a scheduling conflict (see Jellison Aff. ¶ 7); Szestakow
contends that she sent an email asking to reschedule her interview, but without
explanation the District never again contacted her (Szestakow Aff., Ex. 39 to Pl.’s 56(a)2
Stmt. ¶¶ 4–10). Defendant submitted the relevant email in which Russ Mannila, a
Human Resources Officer, wrote that if she could not make her scheduled appointment
“we will be unable to include you in the interview process.” (Reply [Doc. # 90] at 11 & Ex.
F.) Szestakow responded that she was traveling and could not make the interview and
wrote “thank you for your consideration” without requesting an alternate interview date.
Given this record, the Court need not accept Plaintiff’s contention that Szestakow’s
affidavit creates a disputed fact. See Scott v. Harris, 550 U.S. 372, 380 (2007) (“When
opposing parties tell two different stories, one of which is blatantly contradicted by the
record, so that no reasonable jury could believe it, a court should not adopt that version
of the facts for purposes of ruling on a motion for summary judgment.”).
12
selected.” She also suggested that during the interview process, the candidates be given a
test, such as being required to draft a sample press release. (Oct. 28, 2011 email Ryan to
Mannila, Ex. 37 to Pl.’s 56(a)2 Stmt.)
On November 7, 2011 when Gomez arrived at the District for his interview, he
was met by District police officers, who patted him down for weapons, escorted him to
the interview, and remained with him while he waited for his interview. (Gomez Dep. Tr.
at 147, 151–54.)
After a 2010 shooting at Hartford Distributors in Manchester,
Connecticut in which an employee killed eight of his co-workers after being asked to
resign, the District had developed security protocols for former employees. (Jellison Aff.
¶ 20.) District police and other employees were also aware that Gomez had a permit for a
concealed weapon. (Ryan Dep. Tr. at 95; Jellison Aff. ¶¶ 21–22.)
Gomez was the only former employee who was interviewed for the position and
thus was the only candidate subject to this security screening. (Mannila Dep. Tr. at 95–
97.) Jellison, who was ultimately responsible for hiring for the position, attended each of
the interviews along with Mannila and Halloran. (Jellison Aff. ¶ 9; Jellison Dep. Tr. at
50–52.)
All of the applicants were given twenty minutes to complete a sample press
release. (Jellison Aff. ¶ 12.) Gomez felt that during the interview his “frame of mind was
not clear,” because he was “extremely nervous” as a result of the security measures taken
with him. (Gomez Dep. Tr. at 153–54.) Gomez was also unnerved by the presence of
Halloran in the interview room and the fact that Halloran did not speak but just stared at
him.
Gomez “wasn’t happy” with the sample press release that he completed due to the
“strenuous circumstances” under which he had to prepare it resulting from the initial
13
police presence, Halloran’s presence and demeanor during his interview, and the fact that
three District police officers watched him from a distance as he completed the
assignment. (Gomez Dep. Tr. at 165.)
Mannila completed an interview evaluation for Gomez, and wrote that his sample
press released contained “unacceptable typo’s [sic]” and failed to incorporate some
relevant information. (Supervisory Interview Report, Ex. N to Def.’s 56(a)1 at 3.) At his
deposition, Gomez testified that he didn’t “necessarily disagree” with this critique of his
writing sample and acknowledged that his sample contained several grammatical errors,
but contended that the critique did not account for the strenuous conditions of his
interview. (Gomez Dep. Tr. at 166–67, 171.)
Jellison ultimately chose McLaughlin for the position, because she was judged to
have performed well during the interview and produced the best sample press release.
(Interview Notes for McLauglin, Ex. M to Def.’s 56(a)1; Jellison Dep. Tr. at 35; Jellison
Aff. ¶ 13.)
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II.
Discussion4
Plaintiff alleges that both his inclusion in the RIF and the District’s failure to hire
him for the position of the Special Services Administrator were the result of
discriminatory animus and retaliation for his complaints with the CHRO regarding the
“laptop incident,” a March 2011 internal complaint regarding Jefferson, and his posttermination CHRO complaint.
The Court will first address Plaintiff’s retaliatory
discharge claim.
A.
Retaliatory Discharge
The burden-shifting framework laid out in McDonnell Douglas governs retaliation
claims.5 Summa v. Hofstra Univ., 708 F.3d 115, 125 (2d Cir. 2013). “In order to prove a
claim of retaliation under Title VII, as well as Connecticut state law, a plaintiff must
4
Summary judgment is appropriate where, “resolv[ing] all ambiguities and
draw[ing] all permissible factual inferences in favor of the party against whom summary
judgment is sought,” Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008), “the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law,” Fed. R. Civ. P. 56(a). “A dispute regarding a material fact
is genuine if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Williams v. Utica Coll. of Syracuse Univ., 453 F.3d 112, 116 (2d Cir.
2006) (quotation marks omitted). “The substantive law governing the case will identify
those facts that are material, and ‘[o]nly disputes over facts that might affect the outcome
of the suit under the governing law will properly preclude the entry of summary
judgment.’” Bouboulis v. Transp. Workers Union of Am., 442 F.3d 55, 59 (2d Cir. 2006)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). When considering a
motion for summary judgment, the Court may consider depositions, documents,
affidavits, interrogatory answers, and other exhibits in the record. Fed. R. Civ. P. 56(c).
5
“Although McDonnell Douglas concerned the burden and allocation of proof
under Title VII, its framework is also applied to claims under 42 U.S.C. § 1981, and the
CFEPA.” Chukwurah v. Stop & Shop Supermarket Co. LLC, 354 F. App’x 492, 494 n.1 (2d
Cir. 2009) (internal citations omitted).
15
demonstrate that (1) she participated in a protected activity known to the defendant, (2)
she suffered an adverse employment action, and (3) there exists a causal connection
between the protected activity and the adverse employment action.” Hubbard v. Total
Commc’ns, Inc., 347 F. App’x 679, 680 (2d Cir. 2009) (internal citation to Brittell v. Dep’t
of Corr., 247 Conn. 148 (1998)).
“Once a prima facie case of retaliation is established, the burden of production
shifts to the employer to demonstrate that a legitimate, nondiscriminatory reason existed
for its action.” Summa, 708 F.3d at 125. (citing Raniola v. Bratton, 243 F.3d 610, 625 (2d
Cir. 2001)). If the employer demonstrates a legitimate, non-discriminatory reason, then
the burden shifts back to the plaintiff to establish, through either direct or circumstantial
evidence, that the employer’s action was, in fact, motivated by discriminatory retaliation.”
Id. (internal quotation marks and alterations omitted).
16
Further, “a plaintiff alleging retaliation in violation of Title VII must show that
retaliation was a ‘but-for’ cause of the adverse action, and not simply a ‘substantial’ or
‘motivating’ factor in the employer’s decision. However, ‘but-for’ causation does not
require proof that retaliation was the only cause of the employer’s action, but only that
the adverse action would not have occurred in the absence of the retaliatory motive.”6
Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 845–46 (2d Cir. 2013) (citing Univ. of
Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2526, 2533 (2013)).
“A plaintiff may prove that retaliation was a but-for cause of an adverse
employment action by demonstrating weaknesses, implausibilities, inconsistencies, or
contradictions in the employer’s proffered legitimate, nonretaliatory reasons for its
action. From such discrepancies, a reasonable juror could conclude that the explanations
were a pretext for a prohibited reason.” Id.
Plaintiff asserts that his October 7, 2011 termination was retaliation for his July
2010 CHRO complaint stemming from the “laptop incident” and an internal complaint
that he filed in March 2011 alleging that Jefferson, his direct supervisor, had subjected
him to ongoing hostile treatment. In support of this claim, Plaintiff notes that his job
6
Although the Connecticut Supreme Court has not yet addressed whether the
Nassar formulation of causation applies under the CFEPA, see Consiglio v. Cigarette,
CV126027652S, 2014 WL 783471 (Conn. Super. Ct. Jan. 27, 2014), (“[O]ur Supreme
Court has not yet adopted Nassar’s narrow definition of the word ‘because’ and applied it
to a claim brought under § 31–290a.”), the Second Circuit has suggested that Nassar does
not alter the district court’s analysis at summary judgment, see Zann Kwan, 737 F.3d at
846 (“The determination of whether retaliation was a ‘but-for’ cause, rather than just a
motivating factor, is particularly poorly suited to disposition by summary judgment,
because it requires weighing of the disputed facts, rather than a determination that there
is no genuine dispute as to any material fact.”).
17
responsibilities were eliminated just three weeks after the District learned that he sought a
release of jurisdiction from the CHRO and was pursuing his complaint in court, and he
was selected for termination shortly thereafter. (Pl.’s Opp’n [Doc. # 82] at 41.)
A plaintiff’s “presentation of a temporal connection” can be “enough, in and of
itself . . . to permit a reasonable jury to find causation.” Summa v. Hofstra Univ., 708 F.3d
115, 127 (2d Cir. 2013). However, “[t]he cases that accept mere temporal proximity
between an employer’s knowledge of protected activity and an adverse employment
action as sufficient evidence of causality to establish a prima facie case uniformly hold
that the temporal proximity must be very close. Clark Cnty. Sch. Dist. v. Breeden, 532
U.S. 268, 273 (2001) (internal quotation marks omitted). There is no “bright line to
define the outer limits beyond which a temporal relationship is too attenuated to establish
a causal relationship between the exercise of a federal constitutional right and an allegedly
retaliatory action,” and a court must “exercise its judgment about the permissible
inferences that can be drawn from temporal proximity in the context of particular cases.”
Summa, 708 F.3d at 128 (quoting Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009).
Compare Hollander v. American Cyanamid Co., 895 F.2d 80, 85–86 (2d Cir. 1990)
(finding a lack of evidence that an adverse action, taken three months after the plaintiff’s
EEOC complaint, was in response to the plaintiff’s protected activity), with Grant v.
Bethlehem Steel Corp., 622 F.2d 43, 45–46 (2d Cir. 1980) (finding that the lapse of eight
months between an EEOC complaint and retaliatory act indicated a causal connection).
At oral argument, citing the Supreme Court’s ruling in Clark Cnty. Sch. Dist. v.
Breeden, 532 U.S. 268 (2001), Defendant asserted that Plaintiff could not rely on his
September 15, 2011 request for a release of jurisdiction from the CHRO three weeks
18
before his termination to support a showing of temporal proximity, because the relevant
protected activity was his filing of the CHRO complaint in June 2010, not the routine step
of obtaining a release of jurisdiction. In Breeden, the plaintiff alleged retaliation based on
her filing of a complaint in federal court and sought to show temporal proximity based on
the fact that an involuntary transfer occurred ten days later. Id. at 272. The district court
had concluded that because the defendant was not served with this complaint until one
day after it contemplated the transfer, the plaintiff could not show any causal connection
between the complaint and the transfer. Id. The court of appeals then reversed based on
the fact that the EEOC had issued a right-to-sue letter to the plaintiff three months before
the transfer, which provided the defendant with notice of her protected activity and thus
established causation. Id. The Supreme Court reversed, concluding that there was no
indication that the defendant knew about the right-to-sue letter at the time of the
transfer, and “second, if one presumes she knew about it, one must also presume that she
(or her predecessor) knew almost two years earlier about the protected action (filing of
the EEOC complaint) that the letter supposedly disclosed.” Id. at 273. The Supreme
Court noted that the appeals court “did not adopt respondent’s utterly implausible
suggestion that the EEOC’s issuance of a right-to-sue letter—an action in which the
employee takes no part—is a protected activity of the employee.” Id.
Here, unlike in Breeden, Plaintiff does not rely upon his request for a release of
jurisdiction from the CHRO to establish knowledge. Instead, Plaintiff contends that this
request constituted separate protected activity which indicated he was seeking enhanced
remedies only available in state or federal court. By contrast in Breeden, the Supreme
19
Court relied upon the fact that the plaintiff played no role in the issuance of the right-tosue letter. See id.
Since Breeden was decided, the Second Circuit has held that the intermediate steps
that a plaintiff actively pursues in support of a discrimination complaint—not just the
filing of such charges themselves—are activities protected from retaliation. For example,
in Treglia v. Town of Manlius, 313 F.3d 713, 720–21 (2d Cir. 2002), the Second Circuit
rejected the argument that only the filing of an administrative complaint constituted a
relevant temporal guide for a retaliation claim. The defendant argued that a causal
connection could not be established because the allegedly retaliatory action occurred
nearly one year after the plaintiff filed administrative charges of discrimination, but
ignored “protected activity between those two dates.” Id. One month before the adverse
action, the New York State Division of Human Rights (“NYDHR”) “requested that he
submit a list of witnesses who could corroborate his charges of discrimination, after
which he told several members of the department that they might be contacted as part of
the NYDHR investigation.” Id. at 721. The Second Circuit held that the temporal
connection between this action in pursuit of his already-filed complaint and the
retaliation shortly thereafter showed causation. Id.; see also Richardson v. New York State
Dep’t of Corr. Serv., 180 F.3d 426, 446–47 (2d Cir. 1999) (holding that one month gap
between the service of deposition notices in the plaintiff’s Title VII lawsuit and the
employer’s abusive acts was sufficient to establish a causal link).
Accordingly, the
temporal proximity between Gomez’s request for a release of jurisdiction and his
termination three weeks later is sufficiently close for a prima facie retaliation case.
20
While “temporal proximity of events may give rise to an inference of retaliation
for the purposes of establishing a prima facie case of retaliation under Title VII, . . .
without more, such temporal proximity is insufficient to satisfy [a plaintiff’s] burden to
bring forward some evidence of pretext.” El Sayed v. Hilton Hotels Corp., 627 F.3d 931,
933 (2d Cir. 2010).
Defendant contends that the loss of $2.1 million in funding is a legitimate nondiscriminatory reason for Plaintiff’s termination,7 because eliminating the three positions
directly associated with the Mid-Connecticut Project did not come close to making up for
the $2.1 million shortfall and the District had to eliminate additional positions across the
organization without impacting its core services. (Def’s Mem. Supp. [Doc. # 64] at 15–
16.) Defendant contends that Gomez’s position fit this description, because the majority
of his responsibilities—conducting site visits—had been transferred to an outside
consultant. (Id. at 17.)
Plaintiff claims not that the RIF itself was pretext, but rather that his inclusion in
the RIF was based on discriminatory considerations. See Cronin v. Aetna Life Ins. Co., 46
F.3d 196, 204 (2d Cir. 1995) (“A plaintiff who claims unlawful discrimination in the
termination of employment may prevail notwithstanding the fact that his or her job was
eliminated as part of a corporate reorganization or reduction in workforce, for ‘even
during a legitimate reorganization or workforce reduction, an employer may not dismiss
employees for unlawful discriminatory reasons.’” (quoting Maresco v. Evans Chemetics,
7
Although Plaintiff discusses numerous instances of alleged discrimination in the
Third Amended Complaint and his opposition to Defendant’s motion, the only adverse
employment actions alleged and pursued in opposition to summary judgment are his
termination and the failure to be hired as Special Services Administrator.
21
Division of W.R. Grace & Co., 964 F.2d 106, 111 (2d Cir. 1992))). Plaintiff argues
therefore that the District’s loss of funding is not itself a sufficient non-discriminatory
justification for Gomez’s termination, and it must justify the selection of Gomez.
Defendant’s proffered explanation is that Gomez’s main responsibilities had been shifted
to an outside consultant.
Plaintiff contends that there is sufficient evidence from which a jury could
disbelieve Defendant’s explanation. (Pl.’s Opp’n at 29.) First, Plaintiff notes that his
position was not directly affected by the lost funding. There is no dispute, however, that
only three positions were directly funded by the CRRA contract and that the District had
to consider other ways to function without it. Next, Plaintiff contends that Ryan’s
explanations for selecting his position for elimination are contradictory, because at her
deposition she testified that his position was eliminated because his responsibilities could
be absorbed elsewhere in the District yet she “had no idea what Gomez’s job duties
actually were at the time she identified him for job elimination.” (Pl.’s Opp’n at 30.)
While Ryan testified that she didn’t “entirely know” Gomez’s job responsibilities at the
time of his termination, she also testified that he had been previously conducting site
visits, but by the time of his termination was no longer doing so. (Ryan Dep. Tr. at 44.)
Given that site visits was Gomez’s primary job responsibility and the elimination of this
responsibility was Defendant’s primary justification for eliminating his position, Ryan’s
testimony in this respect is not significantly contradictory or inconsistent.
Pressing on, Plaintiff argues that his responsibility for site visits was transferred to
an outside consultant in late September 2011 at a time when Defendant was already
considering positions to eliminate, and this transfer of responsibility became the primary
22
justification for his termination, demonstrating that he was personally targeted for
elimination. (See Pl.’s Opp’n at 27); see also Montana v. First Fed. Sav. & Loan Ass’n of
Rochester, 869 F.2d 100, 106 (2d Cir. 1989) (“[W]here, as here, the plaintiff claims not
that her employer used poor business judgment in discharging her but that her employer
used the structural reorganization as a cover for discriminatory action, a federal court, to
ensure that the business decision was not discriminatory, is not forbidden to look behind
the employer’s claim that it merely exercised a business decision in good faith.”).
Defendant’s proffered non-discriminatory explanation for diminishing Gomez’s
responsibilities was concerns raised by outside groups “[i]n or around 2010 into 2011”
over the reliability of the District’s contractor diversity data. (Zaik Aff. ¶ 15.) Some of
Gomez’s superiors were concerned that Gomez was recording unreliable contractor
diversity data without personally conducting site visits and verifying the data, as he was
supposed to do. (Id. ¶ 16; see also Ryan Dep. Tr. at 48.) Zaik contends that Ruiz was
hired to conduct an audit of Gomez’s work and eventually was retained as an
independent third-party source, which was intended to improve the perceived credibility
of the District’s data. (Zaik Aff. ¶ 18; Zaik Dep. Tr. at 79.)
Gomez acknowledges that outside groups had raised concerns regarding the
reliability of the contractor data, but contends that such concerns would not be redressed
by changing the data collection methods as opposed to the “compliance tracking
mechanism.”
(Gomez Dep. Tr. at 195.)
Given the specific nature of Defendant’s
concerns—the adequacy of Gomez’s performance of his responsibilities—his
disagreement with the District’s business decisions does not demonstrate pretext. See
McPherson v. New York City Dep’t of Educ., 457 F.3d 211, 216 (2d Cir. 2006) (“In a
23
discrimination case . . . we are decidedly not interested in the truth of the allegations
against plaintiff. We are interested in what ‘motivated the employer,’ the factual validity
of the underlying imputation against the employee is not at issue.” (quoting United States
Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983)) (internal citation
omitted)). However, as Plaintiff notes, the District never produced any evidence that
Ruiz in fact performed the audit that it contends she was retained to conduct, casting
doubt upon Defendant’s explanation.
Plaintiff also cites inconsistencies in the record regarding the process that the
District employed to select employees versus positions for elimination, as discussed supra.
(See Pl.’s Opp’n at 32.) Drawing all favorable inferences for Plaintiff and assuming that
specific individuals were discussed during the meetings and preselected for termination,
as Plaintiff acknowledges, this showing alone is not sufficient to defeat summary
judgment.
(See Pl.’s Opp’n at 32 (citing Gaffney v. Dep’t of Info. Tech. &
Telecommunications, 536 F. Supp. 2d 445, 465 (S.D.N.Y. 2008) (“Although the evidence
Stewart has put forth would allow a rational juror to conclude that Defendants
preselected particular Foundation Line Employees prior to conducting interviews, this
consideration alone . . . does not demonstrate . . . that race or age discrimination were the
real reasons behind Defendants’ decision.”)).)
Nevertheless, evidence of preselection would undermine Defendant’s assertion
that Gomez’s termination was the result of a completely objective process that did not
take into account his prior protected activity. Additionally, while the significance of the
belatedly discovered July 20, 2011 email from Sheehan to Zinzarella is not apparent, a
jury could reasonably conclude that (1) it contradicts Defendant’s description of the
24
selection process; (2) it evidences that the selection process occurred months earlier than
Defendant acknowledged, and (3) the fact that Sheehan wrote to Zinzarella using both of
their personal email accounts could suggest a motive to conceal the fact that the District
was actually selecting specific employees rather than positions for elimination. While
such discrepancies do not prove on their own that Gomez’s termination was retaliatory,
such inconsistencies and contradictions could lead a reasonable jury to conclude that the
explanation was not believable. See Zann Kwan, 737 F.3d at 845–46.
Finally, Plaintiff contends that “the record is replete with circumstantial evidence
of disparate treatment of employees who, like Gomez, engaged in protected conduct by
complaining about discrimination.” (Pl.’s Opp’n at 41.) Plaintiff relies upon admittedly
small-sample statistical evidence showing that five8 out of the fourteen (36%) non-union
employees included in the RIF had previously filed a complaint or otherwise opposed
discrimination (Pl.’s Opp’n at 41), which Defendant asserts is insufficient to support an
inference of retaliatory motive under Pollis v. New Sch. for Soc. Research, 132 F.3d 115 (2d
Cir. 1997). However, the only other exempt and excluded employee who had previously
complained of discrimination was terminated in January 2011, and thus, after the
October 2011 layoffs, all six of the non-union employees who had complained of
discrimination were terminated. (Id.) At oral argument, Plaintiff contended that despite
the small sample size this evidence was probative of retaliatory intent because: (1) the
8
Defendant contends that one of these five employees, Deborah Smith, was not
terminated, but rather chose to retire and accept a severance package after she was
informed that her position had been selected for elimination. (Zaik Aff. ¶ 33.) Given that
Smith was indisputably selected for termination, there is no significance to the fact that
when faced with this certainty, she chose to retire.
25
correlation is 100%; (2) the employees’ protected activity all occurred over a short period
of time prior to the October 2011 RIF; and (3) their termination resulted from the same
process with the same decision makers.
In Pollis, the plaintiff “based her case” on a statistical analysis of the application of
a mandatory retirement provision to eight tenured professors over nearly a twenty-year
period. 132 F.3d. at 120. Statistical evidence showed that six male professors who
reached the mandatory retirement age were allowed to retain full-time positions, while
two females who reached the age were not. The Second Circuit vacated a jury verdict in
her favor and ruled that this “statistical evidence suffers from several serious flaws that
render it insufficient to sustain a reasonable inference that her treatment by the
[defendant] was motivated by discriminatory intent.” Id. at 121. Three of the male
professor reached the retirement age over twenty years prior to the plaintiff and were
retained by a different university president and board of trustees, and the qualifications of
each of the six male professors differed substantially from that of the plaintiff. Id. at 121–
22. Additionally, “the size of the group subjected to statistical analysis was tiny—
especially considering that the comparisons encompassed a twenty-year period.” Id. at
121. The Second Circuit did not hold in Pollis that, as a matter of law, such a sample size
could never be sufficient if other statistical shortcomings were not present and the
inference sought to be drawn from the statistics was supported by other evidence. See id.
(“A statistical showing of discrimination rests on the inherent improbability that the
institution’s decisions would conform to the observed pattern unless intentional
discrimination was present. The smaller the sample, the greater the likelihood that an
26
observed pattern is attributable to other factors and accordingly the less persuasive the
inference of discrimination to be drawn from it.”).
By contrast in Stratton v. Dep’t for the Aging for City of New York, 132 F.3d 869,
876 (2d Cir. 1997), the Second Circuit affirmed a jury verdict finding age discrimination
where the plaintiff presented evidence that over a fourteen-month period after a new
commissioner was appointed to a city agency, the average age of the highest ranking
officials dropped from 50.3 to 45.9. Given that this evidence was “only part of the overall
proof” and “accompanied by substantial other evidence showing discrimination,” the
Second Circuit held that the district court properly admitted such evidence.9 Id. at 877.
9
The rulings of the Second Circuit and district court do not specify the sample
size. The district court did, however, also admit evidence regarding the age of the eleven
managers that the new commissioner personally hired or promoted. Rejecting the
defendants’ post-trial arguments that “eleven employment decisions are too small a
statistical sample to be meaningful,” the court noted that the “[d]efendants overlook the
fact that the eleven employment decisions here do not constitute a ‘sample,’ but the entire
universe of managers hired or promoted by [the commissioner]. These decisions, made
by a single person over only a four year period, were thus properly admitted as
circumstantial evidence of improper motive.” Stratton, 922 F. Supp. 857, 864 n.5
(S.D.N.Y. 1996).
27
The Court concludes that the statistical evidence proffered by Plaintiff is relevant
circumstantial evidence that could support the inference that Defendant used the RIF as
an occasion to “clean house” of all employees who had previously engaged in protected
activity.10 Consistent with Stratton, such statistical evidence is not sufficient on its own to
support an inference of retaliatory motive, but with Plaintiff’s other evidence—
inconsistencies in Defendant’s explanations about the reduction of Gomez’s
responsibilities and the process used to select him for elimination—Plaintiff has produced
minimally sufficient evidence to support an inference of retaliatory motive.11
10
After oral argument, Defendant filed [Doc. # 94] a Notice of Supplemental
Authority, discussing two cases from outside this Circuit that it contends disproves
Plaintiff’s theory that a “sample size that it otherwise too small as a matter of law to be
considered significant can nonetheless raise a genuine issue of material fact . . . if the
plaintiff claims that the sample size contains all members of a protected class.” (Id. at 1–
2.) The Court has not concluded that but for the 100% correlation the sample size would
be insufficient as a matter of law, and in both of the cases submitted by Defendant the
sample size is smaller and the nature of the statistical evidence is fundamentally different
because it speaks only to the percentage of protected workers within a given RIF, see
Anderson v. NVR, Inc., No. 09cv2294 (JFM), 2010 WL 5479637, at *7 (D. Md. Dec. 30,
2010) (where four employees applied for a promotion, and the two selected were both
under 40-years-old and the two rejected were both over 40, the court concluded that
“[s]uch a tiny pool of candidates results in a sample size that is simply too small to have
any statistical significance”); Schoonmaker v. Spartan Graphics Leasing, LLC, 595 F.3d
261, 267 (6th Cir. 2010) (where two of three employees eliminated were over 50 and the
single retained employee was 29, the Sixth Circuit concluded that “such a small statistical
sample is not probative of discrimination”), while Plaintiff relies on the percentage of
protected workers in the entire workforce who were selected for inclusion in the RIF.
Only five out of the fourteen non-unionized employees within the RIF had engaged in
protected activity (36%), but the more relevant statistic is that 100% of the employees in
the entire workforce who had engaged in a protected activity were eliminated. Anderson
and Schoonmaker do not address this situation.
11
In its briefing (see Reply at 8 n.5) and at oral argument, Defendant suggests that
this statistical evidence must be accompanied by expert testimony. The Second Circuit
28
Accordingly, Defendant’s motion for summary judgment on Plaintiff’s retaliatory
discharge claim in Counts Two, Three and Five is denied.
B.
Discrimination in Termination
To meet the minimal burden of establishing a prima facie case of discrimination
in the termination context, “a plaintiff must show that he (1) is a member of a protected
class; (2) was performing his duties satisfactorily; (3) was discharged; and that (4) his
discharge occurred under circumstances giving rise to an inference of discrimination on
the basis of his membership in the protected class.” Graham v. Long Island R.R., 230 F.3d
34, 38 (2d Cir. 2000). If shown, “the burden shifts to the employer to articulate a
legitimate, non–discriminatory reason for the employee’s dismissal. If such a reason is
proffered, the burden shifts back to the plaintiff to prove that discrimination was the real
reason for the employment action.” Id. (citing McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973)). The separate stages of a plaintiff’s demonstration of a prima facie
inference of discrimination and pretext “tend to collapse as a practical matter under the
McDonnell Douglas framework.” Collins v. New York City Transit Auth., 305 F.3d 113,
118 n.1 (2d Cir. 2002).
In support of his discriminatory termination claim, Plaintiff offers a different
statistical analysis—that four of the fourteen non-unionized employees terminated, or
29%, were African-American, while African-Americans comprised just 16.5% of the
rejected a similar argument in Stratton. See 132 F.3d at 877 (“[N]o expert was required.
There was no ‘gerrymandering’ of statistics here. Rather, simple arithmetic was used—
the ages of all the individuals were used to calculate an average age for each chart. There
were no sophisticated statistical theories that needed explanation.” (internal citations
omitted)).
29
relevant workforce. (Pl.’s Opp’n at 33.) Plaintiff acknowledges, however, that this “figure
may not be statistically significant in a technical sense,” but contends that “it is
noteworthy simply because it is significantly higher than the percentage of African
Americans in the total Exempt and Excluded workforce.”
(Id.)
Unlike Plaintiff’s
evidence showing that 100% of those non-union employees who had engaged in
protected activity were terminated in a short period of time, Plaintiff’s evidence that 29%
of those selected for the RIF were African-Americans, does not support an inference of
discrimination.
While the strong correlation between protected activity and inclusion in the RIF
was sufficient to support an inference that Defendant sought to “clean house” on the
retaliatory discharge claim, these statistics are of a fundamentally different nature and do
not support an inference of discrimination. Plaintiff does not offer evidence that would
support any such racially based “clean house” theory and offers no statistics to suggest
that a substantial proportion of the District’s African-American workers were included in
the RIF.
Rather, these statistics demonstrate that African-Americans were overrepresented
in the RIF vis-à-vis their numbers in the District, but a minority of those included in the
RIF were African-American. While, as discussed above, Plaintiff has offered evidence of
pretext, absent any other evidence to support an inference of discriminatory motive, no
reasonable jury could conclude that Defendant was terminated on account of his race.
Accordingly, Defendant’s motion for summary judgment is granted on Counts One and
Four and the discriminatory discharge claim in Count Two.
30
C.
Discrimination in Hiring
Gomez’s failure to hire claim is also governed by the three-step burden shifting
analysis of McDonnell Douglas Corp. See Ruszkowski v. Kaleida Health Sys., 422 F. App’x
58, 60 (2d Cir. 2011). Defendant does not dispute Plaintiff’s prima facie case on the
failure to hire claim, but contends that it chose McLaughlin over him, because she
performed better on both the interview and sample press release. (Def.’s Mem. Supp. at
28–30.) Plaintiff contends that “there is absolutely no evidence to support the claim that
McLaughlin was ‘the most qualified candidate.’” (Pl.’s Opp’n at 34.) But Defendant need
not prove that McLaughlin was actually the more qualified candidate; it must only adduce
proof that her selection was not based on discriminatory motive. See McPherson, 457
F.3d at 216; see also Brierly v. Deer Park Union Free Sch. Dist., 359 F. Supp. 2d 275, 296
(E.D.N.Y. 2005) (“The Defendants are not required to prove that Watkin–Fox was the
superior candidate; they are only required to offer non-discriminatory explanations for
how and why they chose her over Brierly.”).
McLaughlin’s superior performance during her interview satisfies the District’s
burden of providing a non-discriminatory reason for not hiring Gomez. See Lomotey v.
Connecticut Dep’t of Transp., 355 F. App’x 478, 482 (2d Cir. 2009). Plaintiff contends that
the interview methods used by the District were subjective, which evidences pretext.
(Pl.’s Opp’n at 34.) The Second Circuit has cautioned that “an employer may not use
wholly subjective and unarticulated standards to judge employee performance.” Knight v.
Nassau Cnty. Civil Serv. Comm’n, 649 F.2d 157, 161 (2d Cir. 1981).
If subjective
evaluations were not scrutinized, a defendant would likely always respond “with a claim
of some subjective preference or prerogative” and consequently would likely always
31
prevail. Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032, 1040 (2d Cir. 1979). Employers
can use subjective evaluations when making hiring decisions, but an employee is also
allowed to challenge the evaluation’s credibility. See Byrnie v. Town of Cromwell, Bd. of
Educ., 243 F.3d 93, 105 (2d Cir. 2001) (“[A]lthough Cromwell is entitled to use subjective
criteria in choosing whom to hire, Byrnie is also entitled to challenge the credibility of the
decision’s rationale.”). While Defendant’s description of interview performance may be
subjective, the sample press release provided an objective basis for comparing candidates
and Gomez acknowledged that his submission was lacking.
Plaintiff also contends that he was subjected to a “very different, and much more
strenuous, application process than any other candidate faced” as a result of the police
reception and presence outside of the interview room, and Halloran’s unexpected
presence in the interview room. (Pl.’s Opp’n at 35.) Although the police presence was
understandably unnerving, Defendant provided a legitimate non-discriminatory
justification for implementing a security policy generally applicable to former employees
after the Hartford Distributors shooting. Gomez was the only candidate subjected to this
security procedure, but he was also the only external candidate interviewed, and thus the
police presence does not support an inference that Gomez was denied a genuine
opportunity to compete for the position or that McLaughlin was preselected.
Notably, before the interview, McLaughlin and Gomez were ranked first and
second, respectively, based on their qualifications for the position, and McLaughlin was
ultimately hired after performing better than Gomez at the interview.
Gomez
acknowledged that his writing sample contained several grammatical errors and did not
dispute Defendant’s assessment that such errors were “unacceptable” and that the sample
32
failed to incorporate some relevant information. (Id. at 166–167, 171.) McLaughlin’s
interview indicated that she was “[v]ery articulate in explaining her role and
responsibilities,” her sample press release “was excellent,” she provided other examples of
her outreach work for the District over the prior six years, and overall demonstrated
“intimate knowledge” of the District given her work experience. (McLaughlin Interview
Evaluation, Ex. M to Def.’s 56(a)1 at 3.) Jellison believed that she “was more refined and
more articulate over all the candidates” and already had experience doing the job as a
result of her interim appointment. (Jellison Dep. Tr. at 35.)
Further, although Gomez was unnerved by the presence of the District’s top
lawyer at his interview, it is undisputed that Halloran was present for each of the
interviews. (Halloran Dep. Tr. at 52.) There is no dispute that aside from the security
presence at Gomez’s interview, the interview process for all candidates was the same and
each was asked to complete the same sample press release in the same amount of time.
(Jellison Aff. ¶¶ 10–12.)
Finally, Plaintiff contends that McLaughlin’s hiring was part of a “suspected
pattern and practice at the District whereby Caucasian employees are appointed into
open positions first on an interim basis, and then selected for the permanent position, to
the disadvantage [of] African American employees.” (Pl.’s Opp’n at 37.) Although the
Court overruled Defendant’s repeated objections to allowing Plaintiff to pursue discovery
in support of this claim (see Substituted Ruling on Discovery Objs. [Doc. # 70] at 11–13;
Ruling Denying Def.’s Mot. for Reconsideration [Doc. # 78] at 2–8), Plaintiff
acknowledges that this pattern and practice is just “suspected” and that he has not
33
produced any evidence that he was a victim of it.12 (Gomez Dep. Tr. at 157.) Cf. Chin v.
Port Auth. of New York & New Jersey, 685 F.3d 135, 150 (2d Cir. 2012) (“Evidence of an
employer’s general practice of discrimination may be highly relevant to an individual
disparate treatment or to a disparate impact claim.”). Plaintiff has not established that
there is a triable issue of fact that the District’s non-discriminatory reason for not hiring
him was pretext.
See Richane v. Fairport Cent. Sch. Dist., 179 F. Supp. 2d 81, 90
(W.D.N.Y. 2001) (“His poor performance at the interview was reason alone to select
other candidates who performed better.”).
Accordingly, Defendant’s motion for
summary judgment is granted with respect to the discriminatory hiring claims of Counts
One, Two, and Four.
D.
Retaliatory Failure to Hire
Plaintiff further alleges that Defendant refused to hire him as retaliation for his
earlier administrative and CHRO complaints as well as the CHRO complaint that he filed
on October 28, 2011, a week after his termination and before his interview for the Special
Services Administrator position on November 22, 2011.13 (Gomez. Aff. ¶ 24.)
Although Defendant contends that Gomez cannot establish a prima facie case of
retaliatory failure to hire because there is no evidence that Jellison—who made the hiring
decision—was aware of his post-termination CHRO complaint, “for purposes of a prima
12
After the Court ordered Defendant to produce data regarding its interim hiring
practices, it revealed that there were eleven non-union positions filled on an interim basis
from 2009 through 2011 by white employees. Only four of the employees ultimately
chosen to occupy these positions on a permanent basis were white. (See Ex. 4 to Gomez
Aff.; Ryan Dep. Tr. at 20, 90.)
13
Plaintiff filed [Doc. # 1] this action on December 15, 2011, after his interview.
34
facie case, a plaintiff may rely on ‘general corporate knowledge’ of her protected activity
to establish the knowledge prong of the prima facie case.”14 Zann Kwan, 737 F.3d at 844
(quoting Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 116 (2d Cir. 2000)). While the
temporal proximity between Gomez’s CHRO complaint challenging his termination and
Defendant’s decision to not rehire him is sufficient to establish a prima facie case, as
discussed above, it is not sufficient to demonstrate pretext. See El Sayed, 627 F.3d at 933.
To establish pretext Plaintiff relies upon the same statistical evidence regarding
the number of employees who had filed discrimination complaints and were later
terminated that he offered in support of his retaliatory discharge claim, and the same
evidence that he offered for pretext in support of his discriminatory failure to hire claim.
In the termination context the statistical evidence could support an inference of
retaliation, because it related to the adverse action challenged—Defendant’s termination
in a RIF that eliminated all remaining dissenters from the District. Applying this same
evidence to the failure to rehire claim does not support such an inference.15 Even if the
evidence could demonstrate a general animus towards dissenters, there is no evidence to
specifically connect this general animus to the relevant hiring decision and Plaintiff has
14
At his deposition, Jellison denied that he was aware at the time of Plaintiff’s
interview of the post-termination CHRO complaint (Jellison Dep. Tr. at 44–45), but it
was later revealed that Jellison received two emails on the same date that Plaintiff was
interviewed for the Special Services Administrator position that mentioned Plaintiff’s
complaint (see Exs. 34, 43 to Pl.’s 56(a)2 Stmt.) Jellison contends that he had not
reviewed these emails prior to Plaintiff’s interview, and had no recollection of having seen
them until after his deposition. (Jellison Aff. ¶ 17.)
15
As discussed, supra at Note 3, the record does not support Plaintiff’s contention
that Szestakow, the only other former employee who had engaged in protected activity
and applied for the position, was denied an opportunity to compete.
35
not otherwise rebutted Defendant’s legitimate non-discriminatory justification for the
failure to rehire him.
Accordingly, Defendant is granted summary judgment on
Plaintiff’s retaliatory failure to rehire claim in Counts Two, Three and Five.
III.
Conclusion
For the reasons discussed above, Defendant’s Motion [Doc. # 63] for Summary
Judgment is GRANTED on Counts One and Four, the discriminatory discharge claim in
Count Two, and the retaliatory failure to rehire claims in Counts Three and Five; and it is
DENIED on the retaliatory discharge claims in Counts Two, Three and Five.
IT IS SO ORDERED.
/s/
Janet Bond Arterton, U.S.D.J.
Dated at New Haven, Connecticut this 27th day of March, 2014.
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